Joel Watson v G4S Secure Solutions Pty Ltd T/A G4S Security

[2016] FWC 2179

[2016] FWC 2179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joel Watson
v
G4S Secure Solutions Pty Ltd T/A G4S Security
(U2015/16383)

DEPUTY PRESIDENT BINET PERTH, 19 APRIL 2016

Application for relief from unfair dismissal-jurisdiction - genuine redundancy.

Introduction

[1] On 1 December 2015 Mr Joel Watson (Mr Watson) lodged an application pursuant to section 394 of the Fair Work Act 2009 (FW Act) in which he asserted that the termination of his employment with G4S Secure Solutions Pty Ltd T/A G4S Security (G4S) was unfair (Application).

[2] In the Employer’s Response to Unfair Dismissal Application (Form F3), G4S indicated its objection to the Fair Work Commission (Commission) exercising its jurisdiction to deal with the Application on the ground that the termination of Mr Watson’s employment was a case of genuine redundancy (Objection). The Objection has been referred to me for determination.

Procedural Matters

[3] Before the Objection could be heard G4S made an application pursuant to section 399A for Mr Watson’s application to be dismissed (s.399A Application). The background to the s.399A Application and my reason for dismissing it are set out below.

[4] On 29 January 2016 Senior Deputy President O’Callaghan conducted a Directions Conference in which Mr Watson failed to participate.

[5] Following the Directions Conference Senior Deputy President O’Callaghan issued directions (O’Callaghan Directions) for both parties to file and serve witness statements for any witness to be called and a copy of any document to be relied on. G4S were directed to file their materials by 19 February 2016 and Mr Watson to file his by 26 February 2016. The O’Callaghan Directions noted that compliance with the directions was mandatory and failure to do so may disadvantage the party concerned. Parties were advised if they had any queries in relation to the O’Callaghan Directions then those queries should be directed to my Chambers. A Notice of Listing was issued concurrently with the O’Callaghan Directions stating that the jurisdictional objection would be heard by me at 10am on 4 March 2016.

[6] On 9 February 2016 the parties were reminded by my Associate by email about their respective filing dates as set out in the O’Callaghan Directions.

[7] G4S filed an outline of Submissions and a Witness Statement by Ms Neonie Colls (Ms Colls) on 24 February 2016 saying that they had mistakenly read Mr Watson’s filing dates as their own. In summary G4S objected to Application on the grounds that their client had terminated their contract at the site at which Mr Watson was employed and G4S was unable to redeploy him in a full time position elsewhere in Western Australia therefore Mr Watson was genuinely redundant and not eligible to access the unfair dismissal remedy.

[8] On 29 February 2016 my Associate contacted Mr Watson reminding him that his materials were overdue and inviting him to contact our Chambers if he had any questions. Mr Watson replied to say that:

“All information I have, was submitted in the application. I have no other information that can be supplied”

[9] The only information contained in the Form F2 filed by Mr Watson about the reasons for his dismissal was:

“1. the site I have been working at for approx. 2 years has closed.
2. employer insists that there is no other full time work available.”

[10] The only information contained in the Form F2 filed by Mr Watson about the reasons why he believed the dismissal was unfair was:

“1. There is subcontractors working at Education Security
2. G4S has an advert on seek.com for Shell in Perth (attached)”

[11] A copy of an advertisement listed on Seek by G4S for the position of Security Officer at Shell Perth was attached as an Annexure to the Form F2 (Shell Advertisement).

[12] At 7.39pm on the evening before the jurisdictional objections were listed to be heard Mr Watson emailed my Chambers to advise that he had misread the Notice of Listing and would not be available to attend the Determinative Conference.

[13] On 8 March 2016 I issued Directions (Binet Directions) requiring Mr Watson on or before 18 March 2016 to:

a. confirm in writing with my Chambers whether or not he intended to proceed with his Application; and
b. file and serve an outline of submissions and any witness statement or document on which he intended to rely on in response to G4S’s jurisdictional objection.

[14] Attached to the Directions was a document outlining the meaning of the terms ‘witness statement’ and ‘outline of submissions’. The Directions also noted that further information in relation to the preparation of witness statements and outlines of submission was available at the Commission website. Extracts of the Unfair Dismissal Bench Book which deal with what constitutes a ‘genuine redundancy’ were attached to the Directions as further assistance for the parties.

[15] The Binet Directions noted that evidence not filed and served in accordance with the directions may not be admitted at the Determinative Conference. The Directions also indicated that a failure to comply with the Binet Directions or attend the relisted Determinative Conference without good reason may result in the Commission dismissing the application on its own initiative pursuant to section 587 or on the application of G4S pursuant to section 399A. Copies of sections 385, 389, 587 and 399A of the FW Act were attached to the Directions. A Notice of Listing stating that the Determinative Conference would be held at 10am on 6 April 2016 was issued contemporaneously with the Directions.

[16] Contrary to the Binet Directions, Mr Watson did not contact my Chambers or file any submissions, witness statements or documentary evidence by 18 March 2016.

[17] On 31 March 2016 G4S made an application pursuant to section 399A for Mr Watson’s application to be dismissed (399A Application). The grounds for their application were in summary:

a. Mr Watson failed to provide submissions and witness statements in accordance with the O’Callaghan Directions.

b. Mr Watson failed to attend the Determinative Conference listed for 4 March 2016 despite having more than one month’s notice.

c. Mr Watson failed to provided submissions and witness statements in accordance with the Binet Directions.

[18] Mr Watson responded stating:

“I find it interesting that Lee has requested the dismissal of this case, it’s almost like he is afraid of the discovery of their wrongdoings. If the Commission wishes to dismiss this case, then on [SIC] be it. The reason I have not filed anything is because everything has already be submitted to the Commission.”

[19] On 5 April 2016 my Associate advised Mr Watson by email that given his failure to comply with the Binet Directions I would hear and determine the 399A Application at the outset of the Determinative Conference the following day. Mr Watson replied to my Associate indicating that he intended to attend the Determinative Conference.

[20] At the Determinative Conference Mr Azfar the National Employee Relations Manager of G4S represented G4S by telephone and Mr Watson represented himself.

[21] At the outset of the Determinative Conference I invited Mr Watson to respond to the 399A Application. Mr Watson submitted that as he did not intend to call any witnesses or rely on any documents he did not believe it was necessary to comply with either the O’Callaghan or Binet Directions. He also said he had complied with the instruction to advise the Commission that he intended to proceed with the matter when he responded to my Associates email on 5 April 2016.

[22] I note that:

a. Mr Watson is self-represented.

b. The O’Callaghan Directions did not require the filing and serving of submissions.

c. Mr Watson’s claim, that he was unavailable to attend the first date on which the Determinative Conference was listed because he misread the Directions, is the same explanation that G4S gave for the late filing of their materials.

[23] Despite being provided with written materials and the invitation to clarify any queries he had I was prepared to give Mr Watson the benefit of the doubt and presume that he did not grasp that anything he might say at the Determinative Conference in response to G4S’s objection to his Application would constitute neither submissions or witness evidence. For this reason I was prepared to find that he did not wilfully or recklessly breach the Directions requiring the filing and serving of submissions and witness statements.

[24] A failure of one party to disclose their submissions and evidence as directed potentially prejudices the capacity of the other party to properly respond and therefore can lead to delays in the determination of a matter and additional costs for the parties. For this reason it is generally undesirable. However in this case the issues in dispute appeared to be narrow and encapsulated by the few words contained in Mr Watson’s Form F2 such that G4S were able, and did in fact, file detailed submissions in reply.

[25] Mr Watson confirmed that he did not intend to call any witnesses (or give any evidence on his own behalf), tender any document other than the document attached to his Form F2, or make any submissions beyond those contained in his Form F2.

[26] In light of the above, including that G4S also failed to comply with the O’Callaghan Directions, I dismissed the s.399A Application and proceeded to hear and determine the Objection.

[27] At the Determinative Conference G4S called Ms Colls and she was cross examined by Mr Watson. Mr Watson was cross examined by Mr Azfar and answered a number of questions which I posed to him.

[28] In the course of the Determinative Conference (and despite his undertaking otherwise) Mr Watson did in fact seek to make submissions beyond those contained in his Form F2 when he sought to argue that his redundancy was not genuine because G4S failed to explore redeployment opportunities outside of Western Australia. Those submissions were not supported by any evidence and are dealt with in my decision below.

Background Facts

[29] The following facts were agreed or uncontested:

a. Mr Watson was employed by G4S as a Security Guard at the premises of CKJV located at Quill Way.

b. On 2 November 2015 CKJV advised G4S that CKJV no longer required security services at their Quill Way site. On the same day Ms Colls passed this information on to Mr Watson.

c. On 4 November 2015 Mr Watson was invited to a meeting on 6 November 2016 to discuss the impact of the contract termination on his employment. The meeting was rescheduled to 9 November 2016 at Mr Watson’s request.

d. Between 2 November 2015 and 9 November 2015 Ms Colls investigated whether any vacancies existed elsewhere in Western Australia to which Mr Watson could be redeployed.

e. On 9 November 2016 Mr Watson met with Ms Colls and Mr Azfar. At that meeting Mr Watson was advised that no full time vacancies existed anywhere in WA. Mr Watson asked if subcontractors engaged at the Education Security site could be terminated so that he could be redeployed at that site. He was advised that this was not possible. Mr Watson was told that casual positions were available at the Shell site. He declined the offer of casual employment and was advised that his employment would be terminated effective from 30 November 2015.

Statutory Framework

[30] Section 396(d) of the FW Act requires the Commission to determine whether the dismissal was a case of genuine redundancy before considering the merits of an application of unfair dismissal.

[31] The term ‘genuine redundancy’ is defined in section 389 of the FW Act as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[32] Mr Watson conceded that the requirements in subsection 389(1)(a) and (b) had been satisfied. The only issue in dispute was whether G4S had fully explored the redeployment opportunities for Mr Watson in accordance with subsection 389(2).

[33] Mr Watson contended in his Form F2, and at the Determinative Conference, that G4S were required by subsection 389(2) to terminate the employment of the sub-contractors engaged on the Education Security site and redeploy him there, or redeploy him to a position at the Shell site in the position/s in the Seek Advertisement. At the Determinative Conference Mr Watson sought to introduce an additional ground upon which he asserted that G4S had failed to comply with section 389(2). According to Mr Watson a failure by G4S to redeploy him elsewhere in Australia or overseas also constituted a failure by G4S to comply with subsection 389(2) and therefore made his otherwise genuine redundancy not genuine.

[34] G4S submitted that it had no obligation to displace contractors to create a vacancy for Mr Watson nor was it reasonable in the circumstances for G4S to explore redeployment opportunities for Mr Watson outside of Western Australia. In relation to the Shell Advertisement G4S say that the advertised position was for the casual positions which they offered to Mr Watson at the 9 November 2015 meeting which he declined.

Consideration

[35] G4S submitted that it had no obligation to displace contractors to create a vacancy for Mr Watson. Their submission is consistent with the decision of Vice President Hatcher in Paul Huang v Forgacs Engineering Pty Ltd  1in which Vice President Hatcher considered the issue of redeployment to a position performed by a contractor in the context of subsection 389(2)(a) and held that the section did not require an employer to displace a contractor to whom they had an existing contractual obligation to create a vacancy in which to redeploy a redundant employee. I therefore find it was not reasonable in all the circumstances for Mr Watson to be redeployed to the Education Security site.

[36] In relation to the job advertised in the Seek Advertisement, Ms Colls gave evidence that this was a casual position and was the position offered to Mr Watson at the 9 November 2015 meeting. Mr Watson conceded that he advised Ms Colls and Mr Azfur at the 9 November 2015 meeting that he did not wish to be redeployed to a casual position. I therefore find that it was not reasonable in all the circumstances for Mr Watson to be redeployed to the advertised position/s at Shell.

[37] In relation to redeployment outside of Western Australia Mr Watson says that G4S were aware that he had English citizenship and work rights in New Zealand and was considering moving to England because he had discussed his leave accruals with Ms Colls at some date prior to CKJV terminating the G4S contract which led to Mr Watson’s redundancy.

[38] Mr Watson concedes he did not ask Ms Colls or Mr Afar whether they had explored redeployment opportunities for him outside of Western Australia either at the 9 November 2015 meeting or any later day. Nor did Mr Watson alert G4S that this was an issue in contention in his Form F2 which would have provided them with the opportunity to tender evidence in relation to what, if any, positions existed interstate or overseas to which Mr Watson could reasonably have been redeployed as at the date of his dismissal.

[39] Ms Colls did give evidence that she encouraged Mr Watson to consider all positions advertised by G4S during his notice period and advise her immediately if there were any positions which he was prepared to be redeployed to. Mr Watson concedes he did not contact her.

[40] In Aldred v J Hutchinson Pty Ltd 2 Commissioner Lewin held that:

“It seems to me that simply because an employee does not expressly raise the possibility of redeployment to another position at some different or distinct location does not mean that it will not be reasonable to redeploy such an employee to that location. Rather in my view the question of what will constitute a redeployment which would be reasonable in all the circumstances will be more complex and entirely dependent on the particular factual circumstances of each case. … The judgement by the Tribunal of whether redeployment will be reasonable in all the circumstances of a particular case must be arrived at objectively on the basis of the evidence before it.”

[41] Mr Watson concedes he did not inform G4S he was prepared to consider redeployment outside of Western Australia although he did raise with Ms Colls various other redeployment opportunities at the 9 November 2015 meeting. Ms Colls gave evidence that she invited Mr Watson to review the G4S website and notify her if he was interested in any advertised positions. This provided Mr Watson with another opportunity to inform G4S that he was prepared to consider redeployment outside of Western Australia. Mr Watson concedes he did not advise her of an interest in any positions either within or outside of Western Australia.

[42] Given that Mr Watson raised various redeployment alternatives with Ms Colls at the 9 November 2015 meeting but did not express an interest in interstate or overseas redeployment (nor did he subsequently express any interest) it is not unreasonable, in Mr Watson’s particular circumstances, that G4S did not contemplate interstate or overseas redeployment.

[43] In the procedural stages prior to the Determinative Conference G4S sought clarification of Mr Watson’s grounds for claiming his redundancy was not genuine. Despite these requests and the Directions of the Commission to file witness statements, an outline of submission and any documentary evidence it was not until the Determinative Conference that Mr Watson first indicated that he would be prepared to consider interstate or overseas redeployment and that he believed that G4S’s failure to consider such opportunities made his otherwise genuine redundancy not genuine for the purposes of the FW Act.

[44] The Commission must find on the balance of probabilities that there was a job, position or other work within the employers enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee in order to find that an otherwise genuine redundancy was not genuine by virtue of subsection 389(2). There must be an appropriate evidentiary basis for such a finding. 3

In Aldred v Hutchinson 4 the applicant tendered evidence of the national nature of the employer and therefore it’s potential capacity to consider redeployment outside the State in which the applicant was employed. Relevantly the applicant also tendered evidence obtained via Orders for Production of vacancies which existed in another State at the time at which the applicant in that case was dismissed. By virtue of the submissions filed and the Orders for Production made in that case the Respondent was on notice that redeployment outside of the state in which the Applicant was resident at the time of dismissal was in contention and therefore led evidence in relation to this issue. The Commission therefore had before it an evidentiary basis on which to find a job, position or other work within the employer’s enterprise existed to which the applicant in that case could be redeployed. Evidence was also led in that case which enabled Commissioner Lewin to determine that the size and scale of the employer’s enterprise was sufficient for him to conclude that the administrative burden of interstate inquires could not be described as unreasonable. That is not the situation in this case.

[45] Ms Colls gave evidence of efforts she undertook to identify if there was any job, position or other work within G4S or an associated entity to which it would have been reasonable to redeploy Mr Watson within Western Australia. Given that G4S were not on notice that Mr Watson intended to submit that he ought to have been redeployed interstate or overseas, G4S did not file or tender at the hearing any evidence in relation to the existence or otherwise of interstate or overseas redeployment opportunities.

[46] Mr Watson did not adduce any evidence of the existence of any G4S associated entities. He did not adduce any evidence that GS4 or any associated entity had operations interstate or overseas. Nor did he adduce evidence of a managerial integration between MS4 and any associated entity interstate or overseas which would impose on GS4 the obligation to explore redeployment obligations with those employers. 5 Mr Watson did not identify any vacant job, position or other work either interstate or overseas either within G4S or an associated entity to which he could be redeployed.

[47] Mr Watson did not adduce any evidence as to terms on which he would have been prepared to relocate. This can be contrasted to the situation in Aldred v Hutchinson  6where the Applicant gave evidence that he would have been prepared to relocate at his own expense and therefore the employer’s assertions that redeployment interstate was not reasonable because of the cost to the employer were found by Commissioner Lewin not to be sound.

[48] As a result of Mr Watson’s failure to comply with the Directions of the Commission there was therefore no evidence before me on which I could find that on the balance of probabilities there was a job, position or other work within G4S or an associated entity in Western Australia or elsewhere to which it would have been reasonable in all the circumstances to redeploy Mr Watson.

Conclusion

[49] In conclusion I find that Mr Watson’s dismissal was a case of genuine redundancy and therefore the Commission is unable to consider the merits of his application for a remedy from unfair dismissal.

[50] An Order [PR578794] will be issued dismissing the Application.

DEPUTY PRESIDENT

Appearances:

Mr Joel Watson on his own behalf

Mr Lee Azfar for the Respondent

Hearing details:

2016

Perth:

April, 6

 1   Paul Huang v Forgacs Engineering Pty Ltd [2014] FWCFB 714 at [38]

 2  Aldred v J Hutchinson Pty Ltd[2012] FWA 8289 at [39] – [41]

 3   Technical and Further Education Commission (t/as TAFE NSW) v Pykett (2014) 240 IR 130 at [36], Ventyx Pty Ltd v Paul Murray[2014] FWCFB 2143 at [78], Booth v True North Australia Pty Ltd[2014] FWC 2370 at [55], Jain v Infosys Limited T/A Infosys Technologies Limited[2014] FWCFB 5595 at [66]

 4   Aldred v J Hutchinson Pty Ltd[2012] FWA 8289 at [19] – [22] [41] – [46]

 5   Ulan Coal Mines Limted v Honeysett, Oldfield, Michaelides, Atkinson, Butler, Dixon, Murray, Butler, Butler[2010] FWAFB 7578 at [27], Roy v SNC Lavalin Australia Pty Ltd[2013] FWC 7309

 6   Aldred v J Hutchinson Pty Ltd[2012] FWA 8289 at [21] [23]

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